Remember Our Forefathers

John Locke - Father of Classical Liberalism

In my previous article I made mention of our “corrupted system of positive law” and the necessity of its eradication. This would be a good time to expound upon this subject and maybe just talk a little legal theory in general.

The Intro

When you walk down the street and decide to cross the road outside of a crosswalk, you could be cited for an infraction and possibly fined. Who are you hurting by doing that? If you drive your vehicle, even 5 mph, without your seatbelt on, you can be pulled over, ticketed, and receive points on your license which cost untold dollars in mandatory insurance premiums. Who are you hurting by doing that? If while walking to the corner store for a loaf of bread you feel the desire to openly drink an alcoholic beverage, you could be heavily fined and possibly arrested. Who are you hurting by doing that? Suppose you suffer from tremendous pain, or perhaps you just want to relax and feel a little personal enjoyment, so you decide to purchase a bag of marijuana but you are tricked by an undercover police sting and are arrested to face fines and jail time. Who are you hurting by doing that?

When laws are made by people, they are certainly not fool proof, nor are they necessarily just. Therein lies the problem: that over time the human race has accepted the fact that the “law” is anything that a sovereign, whether one person or many, deems as such. As I have stated here, there is a long standing tradition of the nullification of unjust “laws” which exists in this country, but in this case I’d like to examine why we even accept the enactment of such “laws” in the first place. How have we become so complacent in our lives to allow such travesties of our Liberty and property to be perpetrated against us each and every day? Should not a “law” be something that is equitable to all and not just to some of society? Should “laws” even exist if they conflict with natural rights? Our problem begins when we consider and accept legal positivism, which lends credence to such “laws“, as a valid theory of law.

Legal positivism posits that all laws are the creation of people, that they have no necessity to be backed by morals or ethics, and that any rights enjoyed by a society are at the sole pleasure and disposition of the sovereign entity of that society. In fairness to the doctrine, it does not suggest that people accept or obey all laws. What it does, however, is to help define the “law” as any written or positive rule or collection of rules prescribed under the authority of the state. It is this definition which we accept as the true meaning of “law” and so it is this philosophy which leads us to ask each question I did so in the preceding paragraph. It is my position, though, that “laws” are not man-made, as the principles of Liberty and Justice exist without our saying so; that they absolutely must be backed by ethics (but not necessarily morals as morals are a matter of personal preference) or else they violate Liberty and Justice; that the only rights that exist are natural rights which do not need to be conferred upon anyone as they exist without proclamation; and finally that no sovereign entity has the power to confer or grant rights to anyone, as all people have been created equal without any one or group being divine.

The Errors

 To say that a law is anything which a monarch or dictator or even legislature decrees is the first fallacy of legal positivism. Again, mankind is not infallible, and has been evidenced throughout history, the error of our ways are in continuous prominent display as our so-called laws are repealed, disregarded, and nullified. The proper way to define law is as we do in science, invariable principles which govern the action of and interaction between human beings. What exists in the pages in the Federal Register are not laws, they are the edicts and commandments of people. If a person, or group of people issues decrees in contradiction to the natural rights of Life, Liberty, and the ownership of Property, then those decrees hold about as much water has a hole-filled barrel. The Federal Register is littered with such trash. Every “law” which violates the freedom to trade as we choose; every “law” which violates our freedom to contract ourselves in any manner we choose; every “law” which restricts our freedom to purchase or consume what we choose; every one of these “laws” is a violation of our just Liberty and therefore is not law at all. As a matter of fact, they are quite contradictory to what laws truly exist. That all men and women are equals under the heavens is law. That all men and women are free to pursue their own endeavors so long as they do not encroach upon those of another is law. That all men and women have the right to acquire and dispose of property in any manner which does not violate the Liberty or property of another is law. That all men and women have a right to defend themselves from the transgressions of others is law. These are laws, natural and immutable, existing before the first state ever issued its first decree, and anything to the contrary is an affront to humanity.

The second error of legal positivism is the idea that laws have no necessity to at least be based upon ethics (as morals are a matter of personal values and judgments and therefore have no place being held over an entire society). This fallacy goes hand in hand with the one in the prior paragraph. Just because a dictator or legislature issues a commandment does not make it just or right; and if a decree is not just, how can a person be expected to adhere to any ordinance which is ethically repugnant to the immutable and natural laws which exist between human beings? The Fugitive Slave Act was once considered “law”. The Black Codes were once considered “law”. Prohibition was once considered “law”. Ethics, properly defined, is that branch of philosophy dealing with values relating to human conduct, with respect to the rightness and wrongness of certain actions. Were those “laws” mentioned above based upon rightness? If any one individual can claim in good conscience and with whole heart that the rules that we should abide by have no need to be based upon their rightness, then that person’s character must be called into question. Furthermore, to ask any person to abide by an act which contradicts what is just and right is to ask that person to compromise their character and integrity.

The third and fourth errors of legal positivism are tightly intertwined within the third principle of the theory: that all rights enjoyed by the people are conferred upon them by the sovereign entity of the society. The first of the two corrections is that rights exist naturally without ever having to be spoken. The second is that no person or group of people has any power to grant rights upon anyone, as all human beings are created equal without any one or group being from the lineage of deities. The third error is very easily diagnosed and then corrected following the same logic as the refutation of the first error mentioned above. The natural rights of human existence appear even before natural laws do. The best way to sum up the idea of natural right is to say that only one natural right truly exists, and it is this one right from which all of our pleasures are derived: that people are free to act according to their own will without being infringed upon by any other. Free will is the supreme natural right. A person is free to act as they choose, but it is only at the moment they enter into society that they decide to cede a part of their whole freedom for the betterment and cooperation of the society. By this I do not mean that people give up their freedom in the understood sense, as in they allow others to rule over and above them, but that they give up their freedom to act in any manner in which they choose. They allow themselves to be governed by the natural laws of human society as mentioned above in refutation of the first error (i.e. property, consumption, contract, trade, etc.). As the right of free will does not ever have to be confirmed through the spoken word, neither do the natural laws, as they follow pure logic and reason behind human interaction. If a person is to be prosperous and comfortable in society, they need the other members of society to be the same. For a person cannot provide for each and every one of their needs and therefore requires that their neighbors be full and happy participants under the grand scheme of the division of labor within that society. It is this mutual respect which fuels the true progression and advancement of civilization, and it is under the natural laws which govern free will that this mutual respect is fostered.

The fourth error is clearly evident once the magnitude of the idea is fully realized. To say that one person’s rights are enjoyed only at the pleasure of another is truly the idea of a tyrant. Even legislatures cannot confer onto nor remove rights from the people over which they govern. As mentioned above, rights exist without anyone’s saying so. They also exist in the face of their own suppression by the decree of tyrannical dictators or legislatures. For example, though it is unjustly illegal to consume banned substances, the right to do so still exists. The right never disappears nor fades away, however it is the oppressive police state which suppresses a person’s right to do so by enforcement of the unjust edict at the barrel of a gun. To step away from a subject so controversial as banned substances, let us consider another example. Under the natural laws which govern humanity, a person has a right to obtain and possess property. The monetary medium of exchange, money, is nothing more than a form of property that one person receives in exchange for their labor or from the sale of their goods. Again, it is the person’s right to acquire, possess, and dispose of such property, money. The Federal Government extracts a healthy piece of this property from a significant portion of the population on a week to week basis in the form of an income tax. This does not mean that the people have lost their right to acquire, possess, and dispose of their property how they deem fit. It means that the tyrannical Federal Government is suppressing this right by way of fear and intimidation. To put it simply, rights cannot be conferred nor removed, they can only be suppressed. Suppression of rights is oppression, and oppression is the work of tyrants.

The Conclusion

Somewhere in the course of human history we have allowed ourselves to fall prey and consequently victim to the gross ambitions of power-starved megalomaniacs. The sad reality is that it is not the fault of such people that our world has become one of suppression and oppression, but the fault of the obsequious masses of the past and present so willing to allow their rights and Liberty to be bought and sold by the duplicitous masters of empty promises and false hope. The law must be recognized for what it truly is, not the simple proclamations of mere mortals. The law is the perpetual axiom of pacific human interaction. The law is the incontrovertible origination of what we call the “golden rule,” coming into existence long before the words ever needed to be spoken. The sooner this self-evident truth becomes fixated within the minds of not just Americans, but of people throughout the entire world, the sooner the world will be rid of such iniquities as institutionalized inequality and utter destitution. The sooner, the better.